Opinion
2013-04-11
ALLSTATE INSURANCE COMPANY, etc., Plaintiff–Respondent, v. 8 WEST 65TH STREET CONDOMINIUM CORP., et al., Defendants–Appellants, Epic Building Restoration, Inc., et al., Defendants. Gregory S. Oyen, et al., Plaintiffs–Respondents, v. Epic Restoration & Renovation, Inc., et al., Defendants, Board of Managers of the 8 West 65th Condominium, Defendant–Appellant. Boris Komarov, Plaintiff–Respondent, v. Gregory S. Oyen, et al., Defendants, The 8 West 65th Street Condominium, et al., Defendants–Appellants. [And Another Action].
Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn, III of counsel), for appellants. Feldman, Rudy, Kirby & Farquharson, P.C., Jericho (Brian R. Rudy of counsel), for Allstate Insurance Company, respondent.
Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn, III of counsel), for appellants. Feldman, Rudy, Kirby & Farquharson, P.C., Jericho (Brian R. Rudy of counsel), for Allstate Insurance Company, respondent.
Daniel J. Hansen, New York, for Gregory S. Oyen and Julie Oyen, respondents.
GONZALEZ, P.J., FRIEDMAN, ABDUS–SALAAM, ROMÁN, CLARK, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 27, 2012, which denied the condominium defendants' motion to vacate Boris Komarov's note of issue and direct further discovery in his action, and denied the condominium defendants' motion to renew a prior order, same court and Justice, entered June 28, 2011, which, inter alia, denied their summary judgment motion insofar as it sought dismissal of Allstate Insurance Co.'s second cause of action, and of Gregory and Julie Oyen's third cause of action, unanimously modified, on the law, to vacate Komarov's note of issue and permit further discovery, and otherwise affirmed, without costs.
The Oyens' third cause of action, which was also sustained by the June 28, 2011 order, was no different from Allstate's second cause of action that was sustained by the order appealed. The Oyens' third cause of action alleged negligence by the condominium defendants in, among other things, failing to maintain, operate, and inspect the property, including in failing to ensure that the roof was in “suitable condition and repair to prevent rain and the outside elements to intrude into the Premises” that caused the “development of mold.” Both were properly sustained.
Rule 202.2l(e) of 22 NYCRR permits the court to vacate the note of issue where good cause is shown. Good cause existed here, insofar as Komarov only first put the condominium on notice of certain damages that he allegedly incurred when he submitted opposition to the condominium's initial motion to dismiss after his note of issue was filed and discovery was essentially concluded ( see Cruz v. City of New York, 81 A.D.3d 505, 917 N.Y.S.2d 158 [1st Dept. 2011]; Spitzer v. 2166 Bronx Park E. Corps., 284 A.D.2d 177, 726 N.Y.S.2d 639 [1st Dept. 2001] ).